In this important Court of Appeal decision the court has upheld an award of $85,000 for pain and suffering arising out of a somatic symptom disorder, despite credibility and reliability issues. Also, and more importantly to the personal injury lawyers out there, the Court has dismissed the “higher burden of proof” rhetoric that has been read into Maslen v. Rubenstein in the last 24 years. As Judge Bauman writes at paragraph 89 for the majority:
Where it may be considered inherently improbable that an event occurred — for example, that a plaintiff continues to suffer pain long after his or her physical injuries have healed — “there can be no rule as to when and to what extent inherent improbability must be taken into account by a trial judge” (F.H. at paras. 47-48). As Maslen itself recognizes, the plaintiff’s own evidence may be sufficient to meet the burden of proof in these cases (at para. 15.1). Credibility is of course critical. But it is for the trial judge, scrutinizing the evidence with care, as he or she does in all cases, to determine the extent to which the circumstances suggest that an allegation is inherently improbable and, where appropriate, to take that improbability into account in assessing whether it is more likely than not that the event occurred (F.H. at para. 48).- Koltai v. Wang,2017 BCCA 152
It would require a five-justice division to over rule Maslen but our current Court of Appeal has questioned Maslen to the extent that its discussion of “evidence of a “convincing” nature to overcome the improbability that pain will continue” might be taken to suggest a higher burden of proof (Maslen at para. 15.1). The higher burden of proof argument is a wrong interpretation of Maslen. Personal injury lawyers confronted with the “clear and convincing” test by ICBC can now rely on Koltai to provide chronic pain claimant’s with the court accepted burden of proof as of 2017.
This appeal arose out of an assessment of personal injury damages resulting from a car accident. The claimant was driving southbound on 200th Street at 56th Avenue in Langley BC and was stopped at the intersection when he was struck from behind.
The credibility of the claimant was very much in dispute throughout the trial. In his reasons, the trial judge made several adverse credibility findings against the claimant. Notwithstanding those findings, the trial judge made the following award:
a. Pain and Suffering: $85,000
b. Past income loss:$68,000
c. Future loss of income /impaired earning capacity: $125,000
d. Future care costs: $90,600
e. Out of pocket expenses:$6,962.98
On appeal defendant insurer ICBC claimed that the trial judge was wrong in principle in ignoring his own findings about the claimant’s compromised credibility and reliability. The Court could identify no error in the trial judge’s assessment of damages and nor did they find the amounts awarded to be inordinately high. The appeal was dismissed.